20010115 TZHC Dar es Salaam

• IN THE HIGH COURT OF TANZANIA DAR ES SALAAM DISTRICT REGISTRY AT DAR ES _..§_AL_l\-@ ...,. CIVrt· CASE N0.183 OF 1996 ntL INVES'IMENT INTERNATIONAL LIMITED •.• ,. APPLICANT VERSUS 1., TANZ1'1NIA BARBOUHS JWTHORITY 2 •. . TANZANIA REVENUE AUTHORITY 3 •· PA RASTATAL SECTOR REFORM COMMISSION I· ,RESPONDENT R U L I .N G MJ1NENTO, . J.: Before me is an application for leavi to be granted to the applicant to appeal to the Court of Appeal against the decision of this court (Kalegeya, J 1 deiivered on 16/6/2000~ This application is propuly made under Section 5(l)(c) of the Appell~te Jurisdiction Act, 1979 and Rule 43 of the Tanzania Court of Appeal RulesJ, 1979 and is supported by an affidavit sworn by'the applicant, one~ Lazarus Duncan Mwaisala. Besides the many paragraphs stated in the supporting affidavit to the chamber Summons, it ' . is only paragtaph number 13 which is in relation to the issue at to· hand, that is the finding of the court that the suit was time barred. The applicant deponed that he seeks leave to challenge the finding ofthe learned ~udge that the time for purpose of limitation began to run on the date of publication of the advitisement of the intended auction. On the other hand, the respondents countered that all.egation in their respective counter affidavits by saying that the honourable judge was correct in his computation of the time limit for the purpose of this suit. It was not in dispute that the time of limitation set for the purpose of this suit is twelve (12) months by virture of Section 67 (b) of the Tanzania ... /2 2 Harbours Authority Act, 1977 and that it starts to run from the date of the.breach. For purpose of this urgument, the applicant submitted that the learned judge erred in holding that the suit was filed beyond. the pres cribed period of twelve months on the ground 1 that the advertisement in the newspaper was made in Appril, 1995 and the suit was filed in July, 1996 instead of lipril, 1996. The applicant 1;1rgued that the period for purpose of limitation started to run from the date the last payment for the goods was · made, th?t is 18th August, 1995, the day the property passed from the owner, the applicant, to the purchaser. Hence the applicant urgued that the hon~ judge failed to address hi □ self to, the real issues involving the question of limitation. I don't shave th.is opinion with the learned counsel. 'rnfact the honourable judge did address himself squirely on the issue of limitation and as to when the cause if action commenced. He ruled that actionable deed was committed not on 7th August,1995 when the auction of the goods was made nor was it \ 15th Jrngust, 1995 when full payment for the auctioned goods were effected, let alone 16th April, 1995 when the auction was advitised, but much earlier than that. That it was when the interests in the property was interfered with, when the goods were passed over the plaintiffs goods to the customs Department which was in April, 1995 in which case 12 months would end in March, 1996. Once the judge had made a finding of fact of the date in which the period of limitation had commenced, then what follows is nothing but simple arithmetic, counting the days or months required for the institution of the proceedings .• In the case before the court, the time limit is twelve months and it was found as a fact that the suit was filed about two months after the expiration of the twelve months limit. The judge was left with no option but to dismiss the suit as being time barred. I totally agree with the honourable . judge that the time commenced in April, 1995 when the goods were ·• ... /3 3 advitised to sell and not on the day the full payment for thmir purchase was made in sometimes August, 1995 •.. Cause of action arosed in April and whether informed or not, the applicant ought to know the time limit for instituting proceedings a&ainst the Tanzania Harbours Authority which is within twelve months period and in the absence of extention of time sought and granted by the court, the law has to be strictly adhered to~ I don't see that there is a point of law to be decided by the Court of !1ppeal as far as time of limitation is conceined in suit. Other matters raised by the counsel for the applicant in regard to froud and overruling of the decision of one judge to another are not the real ,.___) thing to be decided by the court of Appeal as per Chamber summons and the affidavit of the applicant. Those issues were not the basis of the dismissal order •. The suit was dismissed as being time barred and as per Section 3(1) of the Law of Limitation Act, 1971 the court has no atternative but to dismiss a suit or application whether or not limitation has \ been set up as a defence. In this case, it was raised as a preliminary point of law. Having said so, leave cannot be granted to appeal to the Court of Appeal as there is no ambigility in the issue of limitation which is both point of fact as well as point ·of law. . The application is dismissed with costso Sgd: Ao R. l'-'IANENTO JUDGE 15/1/2001. Coram: Mutungi - DR Mr. Mbezi lfilango, for the lpplicant Mr. Lughiya/Dr.,Mapunda·for the 1st Respondent Mr. Lughiya - for the 2nd Respondent · - Manumbu Mrs. Court: Ruling read then 15/1/2001 in Chambers before DR-HC. • __...,. • 4 : F,, s. K. Mutungi in the presences of Mr. Lug(:l.iya for the 2nd Respondent and Br. Mapunda .for the 1st Respondent who incidentally ordered, while I was reading this Ruling and Mro Mhezi IV'lhango for the J\pplicant. i, 0 , t4 · · £0 S. /' MUTUNGI · PJSTRIC .REGISTRAR 15/1/2001 I hereby certify this to be true copy of the Original. F. S _ NGI DIS TRI --- . GISTRAR .